State of Maharashtra & Ors. Vs. Basantilal & Anr.
EmailAppeal: Civil Appeal No. 7251 of 2003
(Arising out of S.L.P. (C) No. 17229 of 2002)
(From the Judgment and Order dated 14.1.2002 of the Bombay High Court in W.P. No. 4383 of 2001)
(Arising out of S.L.P. (C) No. 17229 of 2002)
(From the Judgment and Order dated 14.1.2002 of the Bombay High Court in W.P. No. 4383 of 2001)
Petitioner: State of Maharashtra & Ors.
Respondent: Basantilal & Anr.
Apeal: Civil Appeal No. 7251 of 2003
(Arising out of S.L.P. (C) No. 17229 of 2002)
(From the Judgment and Order dated 14.1.2002 of the Bombay High Court in W.P. No. 4383 of 2001)
(Arising out of S.L.P. (C) No. 17229 of 2002)
(From the Judgment and Order dated 14.1.2002 of the Bombay High Court in W.P. No. 4383 of 2001)
Judges: N. Santosh Hegde & B.P. Singh, JJ.
Date of Judgment: Nov 09, 2003
Appearances:
Mr. Mukesh K. Giri, Advocate for the Appellants.
Mr. Sanjay V. Kharde, Ms. Chandan Ramamurthi, Advocates for the Respondent No. 1.
Mr. Ajay Majithia, Mr. Shekhar K. Sinha and Dr. Kailash Chand, Advocates for the Respondent No. 2.
Mr. Sanjay V. Kharde, Ms. Chandan Ramamurthi, Advocates for the Respondent No. 1.
Mr. Ajay Majithia, Mr. Shekhar K. Sinha and Dr. Kailash Chand, Advocates for the Respondent No. 2.
Head Note:
CONSTITUTION LAWS
Article 166 – Bombay Prohibition Act, 1949 – Section 34 – Authentication under – Minister of Excise, passing order in revision under Excise Act – Order passed in exercise of powers under statute. Held that Minister was acting under statute and passed quasi-judicial order, which does not require authentication under Article 166. Matter remanded for consideration on merits.
Held:
The order made by the Minister concerned was on a revision petition filed against the order of the Commissioner of Excise who himself was entertaining a petition before him under the provisions of the Act sitting as a quasi-judicial authority. It is also an undisputed fact that executive authorities also, if so empowered under a statute, exercise quasi-judicial powers. Such powers when exercised by an authority under a statute, sitting as a quasi-judicial authority results in a quasi-judicial order which can never be termed as an executive order requiring authentication under Article 166 of the Constitution of India. (Para 5)
Cases Reffered:
1. Gulabrao Keshavrao Patil and Ors. v. State of Gujarat & Ors. (JT 1995 (9) SC 12) (Para 6)
2. Bachhittar Singh v. The State of Punjab (1962 Supp (3) SCR 713) (Para 6)
2. Bachhittar Singh v. The State of Punjab (1962 Supp (3) SCR 713) (Para 6)
JUDGEMENT:
Santosh Hegde, J.
1. Heard learned counsel for the parties.
2. Leave granted.
3. The question involved in this appeal revolves around a narrow compass that is, does an order made by the Minister for State (Excise), government of Maharashtra in a revision petition under section 34 of the Bombay Prohibition Act, 1949 (the Act) require authentication under Article 166 of the Constitution of India ? The High Court of judicature, Bombay at Aurangabad in a writ petition field by the first respondent herein has held that it is necessary.
4. The question, therefore, for our consideration is whether a quasi-judicial order made under the provisions of a statute by revisional authority who is also a Minister in the State Cabinet, require authentication under Article 166.
5. It is an admitted fact that the order made by the Minister concerned was on a revision petition filed against the order of the Commissioner of Excise who himself was entertaining a petition before him under the provisions of the Act sitting as a quasi-judicial authority. It is also an undisputed fact that executive authorities also, if so empowered under a statute, exercise quasi-judicial powers. Such powers when exercised by an authority under a statute, sitting as a quasi-judicial authority results in a quasi-judicial order which can never be termed as an executive order requiring authentication under Article 166 of the Constitution of India.
6. The High Court in impugned order relied on a judgment of this Court in Gulabrao Keshavrao Patil and Ors. v. State of Gujarat & Ors.1 which in turn was based on an earlier constitution bench judgment of this Court in Bachhittar Singh v. The State of Punjab2. We have perused the said judgments and find that the law laid down therein has no application to the facts of the case in hand. In neither of the two judgments of this Court referred to hereinabove, this Court has held that a quasi-judicial order made by an executive authority sitting as an appellate or revisional authority under a statute can be construed as an executive order. Therefore, in our opinion, the High Court fell into an error in construing the order made by the minister, impugned in the writ petition, as an order requiring authentication under Article 166 of the Constitution.
7. Since the High Court has not gone into the merits of the case other than the question of requirement of authentication, we think it proper that the impugned order should be set aside and the matter be remanded to the High Court for fresh disposal, after hearing the parties concerned. We also direct that until the disposal of the writ petition by the High Court, status quo in regard to shops concerned as existing prior to the filing of the writ petition, should be maintained.
8. For the reasons stated above, the impugned order is set aside and the matter is remitted to the High Court for disposal in accordance with law. This appeal is accordingly allowed.
1. Heard learned counsel for the parties.
2. Leave granted.
3. The question involved in this appeal revolves around a narrow compass that is, does an order made by the Minister for State (Excise), government of Maharashtra in a revision petition under section 34 of the Bombay Prohibition Act, 1949 (the Act) require authentication under Article 166 of the Constitution of India ? The High Court of judicature, Bombay at Aurangabad in a writ petition field by the first respondent herein has held that it is necessary.
4. The question, therefore, for our consideration is whether a quasi-judicial order made under the provisions of a statute by revisional authority who is also a Minister in the State Cabinet, require authentication under Article 166.
5. It is an admitted fact that the order made by the Minister concerned was on a revision petition filed against the order of the Commissioner of Excise who himself was entertaining a petition before him under the provisions of the Act sitting as a quasi-judicial authority. It is also an undisputed fact that executive authorities also, if so empowered under a statute, exercise quasi-judicial powers. Such powers when exercised by an authority under a statute, sitting as a quasi-judicial authority results in a quasi-judicial order which can never be termed as an executive order requiring authentication under Article 166 of the Constitution of India.
6. The High Court in impugned order relied on a judgment of this Court in Gulabrao Keshavrao Patil and Ors. v. State of Gujarat & Ors.1 which in turn was based on an earlier constitution bench judgment of this Court in Bachhittar Singh v. The State of Punjab2. We have perused the said judgments and find that the law laid down therein has no application to the facts of the case in hand. In neither of the two judgments of this Court referred to hereinabove, this Court has held that a quasi-judicial order made by an executive authority sitting as an appellate or revisional authority under a statute can be construed as an executive order. Therefore, in our opinion, the High Court fell into an error in construing the order made by the minister, impugned in the writ petition, as an order requiring authentication under Article 166 of the Constitution.
7. Since the High Court has not gone into the merits of the case other than the question of requirement of authentication, we think it proper that the impugned order should be set aside and the matter be remanded to the High Court for fresh disposal, after hearing the parties concerned. We also direct that until the disposal of the writ petition by the High Court, status quo in regard to shops concerned as existing prior to the filing of the writ petition, should be maintained.
8. For the reasons stated above, the impugned order is set aside and the matter is remitted to the High Court for disposal in accordance with law. This appeal is accordingly allowed.
